August 30, 2000, Defendant Faulkner's attorney's letter to the Clerk of the Court as to the filing of "DEFENDANTS' REPLY MEMORANDUM TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS OR SUMMARY JUDGEMENT. Total of one (1) page. The attached (undated) "DEFENDANTS' REPLY MEMORANDUM TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS OR SUMMARY JUDGEMENT. Total of ten (10) pages. Both documents are a total of (11) pages.
Clerk of Court
United States District Court
316 N. Robert St
Saint Paul, MN 55102
Lambros v. Faulkner et al
Court File No. CV 98-1621 DSD/JMM
Enclosed for filing in the above-referenced case, together with an affidavit of service upon counsel for plaintiff, are the original and two copies of the following:
DEFENDANT'S REPLY MEMORANDUM TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS OR SUMMARY JUDGMENT.
CC: The Honorable John M. Mason
End of letter
JOHN GREGORY LAMBROS
CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER
SHEILA REGAN FAULKNER
FAULKNER & FAULKNER, Attorneys at Law
JOHN & JANE DOE
CIVIL CASE 98-1621 DSD/JMM
DEFENDANTS' REPLY MEMORANDUM TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS OR SUMMARY JUDGMENT
1 Plaintiff's failure to rebut the opinion of defendants' expert is fatal to his malpractice claims
Expert testimony is generally required for a legal malpractice claim to establish attorney standards of conduct and whether a particular counsel's conduct conformed with that conduct. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 116 (Minn. 1992); see Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999); 4 Mallen & Smith Legal Malpractice § 32.17 (4th ed. 1996). Only when the circumstances are such that the recognition of the alleged negligence may be presumed to be within the comprehension of laypersons may expert testimony be dispelled with. Boyle, 589 N.W.2d at 124; 4 Mallen & Smith, Legal Malpractice at § 32.16. Examples of
End of page 1
situations where malpractice claims do not require experts include those where the lawyer admits the alleged misconduct, or a statute of limitations period was missed by counsel. See House v. Maddox, 360 N.E.2d 580, 584 (III.App. 1977). Plaintiff acknowledges these limited circumstances in which a claimant in a legal malpractice suit may proceed without an expert (Memorandum in Opposition at page 25), but falls to explain how his claims approximate those such as ones where a statute of limitations was missed. Plaintiffs claims of malpractice are not of the kind or type for which a lay person could make a decision without an expert opinion. Moreover, without an expert, plaintiff cannot overcome the strong presumption of competence afforded counsel in a criminal case. See,Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998); Hale v. State 566 N.W.2d 923, 927 (Minn. 1997).
Defendants' expert, Joseph S. Friedberg, has opined that Mr. Faulkner's representation of the plaintiff in plaintiffs criminal case did not fall below an objective standard of reasonableness for defense counsel. Plaintiff has responded to
the defendants' motion for summary judgment without submitting any affidavit of
anyone who contradicts Mr. Friedberg's opinion. In a legal malpractice suit, where
summary judgment is made and supported by an affidavit, the opposing party "may
not merely rest upon the averments made in his pleadings." Prawer v. Essling, 282
N.W.2d 493, 495 (Minn. 1979). Plaintiff has the burden of establishing a standard of
care and his counsel's departure from that standard Id; accord Wartnick v. Moss &
Barnett 490 N.W.2d 108, 112, 116 (Minn. 1992). Mr. Lambros has not, and
End of page 2
In a separate motion
filed by the plaintiff for appointment of an expert, the
meritlessness of plaintiffs malpractice claims is exposed. The motion
for appointment of an expert discloses that plaintiff has no support
for his claim outside the conclusory allegations in his pleadings and
his own personal opinion. According to the motion, plaintiff desires
to have an expert appointed, "to review the history of Plaintiff's
criminal case and to form an opinion about the requisite standard of
care for an attorney under the circumstances." See Plaintiffs Motion
for Appointment of A Legal Expert (DK 100).
A finding that plaintiffs claim is frivolous and made without support may subject the plaintiff to sanctions upon a separate motion by the defendants or on the court's own initiative. See Rule I I (b)(3) and (c), Fed.R.Civ.P. For purposes of defendants' summary judgment motion, plaintiff's failure to offer any support for his allegations of malpractice outside his own pleadings is fatal to his claims. Anderson v. LibeM Lobby. Inc., 477 U.S. 242, 249 (1986).
2. Plaintiff's belief that he may have been offered a different plea agreement but for his counsel's actions, fails to establish actual prejudice as a result of his counsel relaying inaccurate information. Plaintiff asserts that if his appointed counsel had known that plaintiffs sentencing exposure at trial was less than mandatory life without parole, "the federal prosecutor may have offered Mr. Lambros a plea agreement of less than the seven
End of page 3
years actually offered."
Plaintiffs Memorandum in Opposition to Defendants' Comprehensive
Motion to Dismiss or for Summary Judgment ("Plaintiffs Memorandum in
Opposition" ) at pages 9 and 21.
In this legal malpractice action, which is governed by Minnesota law', a client may not prevail merely on the contention the result might have been different but for counsel's unprofessional errors, but rather that the result would have been different. See Carlson v. Fredrickson & Byro 475 N.W.2d 882, 886 (Minn.Ct.App. 1991). In Carlson, the plaintiff claimed that he reached an unfavorable settlement because of his counsel's incomplete and erroneous advice. He asserted that he would have achieved a better result either by reaching a better settlement or by defeating claims in a threatened lawsuit. The Minnesota Court of Appeals stated that it was not sufficient for the plaintiff in a legal malpractice case to a show that he might have won. Instead there needed to be evidence that he would have won a more favorable result. Id at 886. Here plaintiff asserts only that the prosecutor may have offered him a more favorable plea agreement and that the plaintiff would have accepted a more agreeable offer.
Aside from the fact the plaintiff advised the trial court and a close personal friend that he refused to negotiate or accept a plea bargain (T.1-12 and
Footnote 1: See Fletcher v. Zellmer, 909 F.Supp 678, 683 (D. Minn. 1995) affd 105 F.M. 662 (8th Cir. 1997).
End of page 4
Affidavit of Jeffrey
Orren, paragraph 7)2, there is no factual basis for plaintiffs
contention the government mav have offered him a more favorable plea
agreement. Similarly, with respect to plaintiffs claim that his
appointed counsel failed to investigate (Memorandum in Opposition at
10-11), plaintiff fails to set forth any facts to establish that the
results of any interviews with plaintiff's Brazilian attorneys,
Brazilian government officials, or psychologists would have disclosed
favorable, admissible evidence' that would have made the outcome of
plaintiffs case different. Plaintiff has shown no proximate cause for
any injury based on the defendants' acts', his malpractice claims
should be summarily dismissed.
Footnote 2: This page from the trial transcript is included with the Affidavit of
Deborah Ellis (Dk. 92). A certified copy of the affidavit of Jeffrey
Orren filed in the district court January 27, 1994 is attached to the
Affidavit of Donna Rae Johnson (Dk. 94).
Footnote 3: The trial
court repeatedly refused to allow plaintiff or plaintiffs counsel
to introduce evidence regarding plaintiffs detention in Brazil (T.IV -
574, included with Affidavit of Deborah Ellis, Dk. 92).
Footnote 4: Plaintiffs
suggestion that he was improperly "tried for a parole violation,
which is not a crime in Brazil" (Memorandum in Opposition at 12,
footnote 10), misstates the record of plaintiffs criminal conviction.
Plaintiff was tried and convicted of conspiracy to possess with intent to
distribute and distribute more than 5 kilograms of cocaine and aiding and
abetting the same. See Amended Judgment in A Criminal Case, attached
to Affidavit of Donna Rae Johnson (Dk. 93). Mr. Lambros also
complains that he was "tried on Counts 5, 6, and 8, which are not crimes
in Brazil" (Memorandum in Opposition at 12, footnote 10). Notably, in
the amended judgment, Mr. Lambros was not convicted of any counts
End of page 5
3. Plaintiff has no-recognizable claim under the Federal Torts Claims Act against counsel appointed under 18 U.S.C. § 3006A
Plaintiff attempts to resurrect a claim from his initial complaint which was superseded by the Amended Complaint. See Memorandum in Opposition at 14, footnote 12. No where in his Amended Complaint, however, does plaintiff state a claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. §2671 et seq. But whether such a claim can be gleaned from the plaintiffs pleadings, Charles W. Faulkner was not a federal employee under the Federal Torts Claims Act. In Sullivan v. United States, 21 F.3d 198 (7th Cir. 1994), cited by plaintiff at page 13 of his Memorandum in Opposition, the Seventh Circuit noted that federal defenders appointed under Section 3006A(g)(2)(A) of Title 18 are employees of the government. Id at 200; accord Echols v. Dwyyer, 914 F.Supp. 325, 327 (E.D. Mo. 1996). In other words, full time defenders either from a federal public defender organization or a community defendant may be sued under FTCA. These defenders, unlike those appointed under Section 3006A(b), are afforded assistance from against liability claims from the Director of Administrative Office. See 18 U.S.C. § 3006A(g)(3).
Mr. Faulkner was appointed under Section 3006A(b) and as such was not an "employee" of the federal government and no claim under the FTCA is cognizable against a non-federal employee.
numbered 5, 6 or 8.
End of page 6
attempt to couch his legal malpractice claims as "federal claim"
under the FTCA, does not avoid application of Minnesota law. Actions
brought under the FTCA are still governed by the substantive law of
the state in which the alleged tort occurred. See Warden v. United
States, 861 F.Supp. 400, 402 (E.D.N.C. 1993). Even if this Court
were to conclude that plaintiff had a claim against his appointed
counsel under the FTCA, application of Minnesota law results in
immunity for appointed counsel. See Ferri v. Ackerman, 444
U.S. 193, 198 (1979) (states are free to decide whether public
defenders have immunity from legal malpractice claims); Dziubak v.
Mott, 503 N.W.2d 771, 773 (Minn. 1993) (appointed counsel
afforded immunity under Minnesota law).
4. Plaintiff s valid, conviction and sentence
damages based on either
A strict reading of the amended complaint suggests that the plaintiff is
seeking damages for personal injuries including pain and suffering. See paragraph
100, Amended Complaint. Giving the amended complaint a liberal reading, a claim
for lost wages suggests that the plaintiff is seeking damages for a wrongful conviction
which is more consistent with the numerous allegations of legal malpractice.
Plaintiff's suggestion that Heck v. Humphrey , 512 U.S. 477 (1994) is inapposite is
error. See Memorandum in Opposition at pages 17 - 18. Both cases cited by the
Footnote 5: Plaintiff alleges that "damages are for pain and suffering and actual injuries to Plaintiffs body, enjoyment of use, loss of wages, residual pain, etc." Amended Complaint at paragraph 100.
End of page 7
plaintiff are clearly
distinguishable from the instant case.
In both Nelson v. Jashurek, 109 F.3d 142 (3rd Cir. 1997) and Martinez 184 F.3d at 1127 , 184 F.3d 1123 (10th Cir. 1999), the federal circuit courts found that the plaintiffs' claims for damages arising from excessive force were not barred due to a valid conviction. The courts in each circuit noted that the proceedings in the district court must go forward on the basis that the underlying convictions were valid. Nelson, 109 F.3d at 146; Martinez, 184 F.3d at 127. In other words, the plaintiffs were not precluded from seeking damages from excessive force used in effecting a lawful arrest. For Mr. Lambros, however, his claims for damages are premised largely upon a contention that he was wrongly convicted and the length of his sentence because of his counsel's shortcomings. Of note is the fact that plaintiff states his claim for damages to be exclusively based upon "excessive incarceration." Memorandum in Opposition at page 19. Plaintiffs claim of an excessive sentence is premised upon speculation that he might have been offered a better plea agreement. See Argument 2, infra. Any claim for lost wages or other damages due to plaintiffs conviction is collaterally estopped given the validity of plaintiffs underlying conviction.
5. Plaintiff has failed to establish he had valid commercial lien to Support Claim XI in his Amended Complaint
Plaintiff asks this Court to deny the defendants motions for dismissal or summary judgment on his commercial lien claim because no one informed him his
End of page 8
commercial lien claim was
invalid. Memorandum in Opposition at page 27. Plaintiff's request is
ridiculous and he asks the court to do the impossible: enforce an
invalid claim filed with a state agency. Plaintiff does not argue
that his claim is valid, only that he be granted an opportunity to
correct the deficiency in his claim. Plaintiffs Claim number )(I must
be dismissed on the pleadings pursuant to Rule 12(b) because "it
appears beyond doubt that plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." J.D. Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). Alternatively, defendants are
entitled to summary judgment on the commercial lien claim if the
court takes into consideration the affidavit of Marc Diersen (Dk. No.
64) that no valid lien was ever perfected.
Plaintiff's response to
defendants' motion for dismissal or summary judgment discloses the
frivolous nature of plaintiff's lawsuit. Plaintiff has offered no
support, outside of his own opinion and conjecture, to support his
claims. This Court should recommend dismissal of all claims with
prejudice and a finding that his claims are frivolous and fail to
state claims upon which relief may be granted.' This plaintiff has
amply demonstrated what the Eighth Circuit Court
Pursuant to 28 U.S.C.
§ 1915 (g), a prisoner who has, on three or more
prior occasions, brought an action or appeal that was dismissed on the
grounds that the action was frivolous, malicious or failed to state a claim
upon which relief could be granted, is barred from instituting another
civil action or appeal.
End of page 9
once observed was the
benefit of summary judgment even given complex (or in this case,
inartfully crafted) claims:
The motion for summary judgment can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts, trial time for those cases that really do raise genuine issues of material fact.
Pleasant Iowa v.
Associated Electric Coop., Inc.
838 F.2d 268, 273 (8th Cir 1998 Cir.
1988). Plaintiff Lambros has been given ample opportunity since his
initiated two years go to amend his claims, obtain assistance of counsel and come
forward with any support he has for his allegations. He has failed and his litigation
should be put to an end.
Donna Rae Johnson
For more information write (snail mail) JOHN GREGORY LAMBROS directly at:
JOHN GREGORY LAMBROS
Prisoner No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
THANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.